| People v Hinds |
| 2012 NY Slip Op 02054 [93 AD3d 536] |
| March 20, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JasonHinds, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J., at Hintonhearing; Richard D. Carruthers, J., at dismissal motion, jury trial and sentencing), renderedMarch 24, 2010, convicting defendant of criminal sale of a controlled substance in the thirddegree, and sentencing him, as a second felony drug offender, to a term of four years,unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning credibility. We have considered andrejected defendant's challenges to the evidence establishing that the substance sold to theundercover officer was cocaine.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). The record supports the court's finding that the nondiscriminatory reasonsprovided by the prosecutor for the challenges in question were not pretextual. This finding isentitled to great deference (see People v Hernandez, 75 NY2d 350 [1990], affd500 US 352 [1991]), particularly to the extent it involves matters of demeanor. Defendant'sgeneral reference to "other occupations" of prospective jurors was insufficient to preserve hispresent claim of disparate treatment by the prosecutor of similarly situated panelists, and wedecline to review it in the interest of justice. As an alternative holding, we also reject it on themerits (see People v Wainwright, 11AD3d 242, 244 [2004], lv denied 4 NY3d 749 [2004]).
The court properly granted the People's challenge for cause to a prospective juror. Thepanelist's responses revealed "opinions reflecting a state of mind likely to preclude impartialservice" (People v Johnson, 94 NY2d 600, 614 [2000]). He gave only a qualifiedassurance of impartiality that was rendered even more equivocal by his demeanor, as noted by thecourt.
The evidence at the Hinton hearing established an overriding interest that warrantedthe limited closure of the courtroom (see Waller v Georgia, 467 US 39 [1984]; Peoplev Ramos, 90 NY2d 490, 497 [1997], cert denied sub nom. Ayala v New York, 522US 1002 [1997]). Therefore, the closure order did not violate defendant's right to a public trial.The officer testified, among other things, that he continued his undercover work in the vicinity ofthe charged crimes, that he had open investigations, that he had cases pending in the courthousenearby, that he had been threatened in other undercover investigations, and that he took [*2]precautions to protect his identity. This demonstrated that his safetyand effectiveness would be jeopardized by testifying in an open courtroom, and it satisfied therequirement of a particularized showing (see e.g. People v Plummer, 68 AD3d 416, 417 [2009], lv denied 14NY3d 891 [2010]). Furthermore, the court considered alternatives to full closure and madeadequate findings.
Defendant's remaining contentions are unpreserved and we decline to review them in theinterest of justice. As an alternative holding, we also reject them on the merits.Concur—Mazzarelli, J.P., Saxe, Renwick, Richter and Abdus-Salaam, JJ.